Thursday, December 20, 2007

Definitely worth reading

If you go to the webpage of Dallas litigator Barry C. Barnett, there is a link where you can download a chapter he wrote, called "Techniques for Expediting and Streamlining Litigation," for the ABA Litigation Section's treatise on "Business and Commercial Litigation in Federal Courts."

I think you ought to go there right now and download this chapter, and read it - if you don't already own the eight-volume treatise, which I don't, although I'm sure it is a bargain as it lists for over $1,000. They might have it in the "treatise room" in Abingdon, one of my old hang-outs.

Reading over this, I was reminded of the litigation of the statute of limitations issue in the Evergreen case. The Evergreen cases were filed against multiple defendants by the one plaintiff group, out in the provinces, like the W.D. Va., with theoretically longer statutes of limitation, then transferred to the District of Columbia, where Judge Hogan had already granted summary judgment against one of the larger coal companies. The uneducable youth that I was, I did my best to force the Court to rule on limitations, despite the reservations of older and wiser counsel. The threshold issue was which law applies, the transferor forum (Virginia) or the transferee forum (D.C.). The Court answered, in a fairly subtle opinion, that on this particular issue where the federal cause of action borrows the state limitations period, that the limitations period from the transferor state would apply. In re United Mine Workers of America Employee Ben. Plans Litigation, 854 F. Supp. 914 (D.D.C. 1994). This bummed me out, because the federal courts had held before and since that the federal law of the transferee forum is what generally applies. See, e.g., Hartline v. Sheet Metal Workers' Nat'l. Pension Fund, 201 F. Supp. 2d 1, 3-4 (D.D.C. 1999); In re Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171 (D.C. Cir. 1987).

So, we retooled, and argued that under Virginia law, it was still the case that the shorter D.C. statute would apply, by virtue of Virginia's borrowing statute, Va. Code 8.01-247 (all of which was borrowed under federal law for the ERISA claims). By that time, the dust had settled on the MDL, and I went and argued at a hearing with just myself and the lawyer for the Funds, Julia Penny Clark of Bredhoff & Kaiser. And, Judge Hogan agreed. United Mine Workers of America 1974 Pension Trust v. Big Star Coal Co., 1998 U.S. Dist. LEXIS 11530 (D.D.C. 1998). In a footnote, the Judge wrote: "This case is one of the many mine worker pension plan cases that were transferred to this Court from the Judicial Panel on Multi-District Litigation. The Court notes that this case presents an anomaly among these cases. Because of fortuitous factual circumstances and technicalities in the law, Defendants have been able to avoid liability in this case while many of their counterparts have not." So, as the invoker of the anomalies, fortuities, and technicalities, I was delighted.

In fact, that is my favorite footnote of all time. Have I told that story lately? Another part of it is here, and none of it can be told too many times.